Terms & Conditions of Service

Your Agreement with HubGem Marketing Ltd

Last updated: March 2023

1.    Definitions

In this Agreement the following terms and phrases shall have the following meaning unless the context requires otherwise: 
    
Commencement Date:
The project kick-off date as agreed in your Quote.

Services:
The agreed Services to be performed by HubGem Marketing Ltd as set out in the Quote. Such Services to be provided using reasonable skill and care and to the Service levels.

Termination Date:
The ‘End date’ on which HubGem Marketing Ltd’s engagement hereunder is terminated. 
    
Intellectual Property Rights:
Patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Data Protection Legislation:
Means the Data Protection Act 2018 which incorporates the UK GDPR.

Deliverables:
The specified Services as outlined in the Quote.

2.      Engagement

HubGem Marketing Ltd is engaged by the Client to carry out the Services.

3.     Delivery of Services

HubGem Marketing Ltd agrees:

3.1    To undertake and provide the Services in accordance with the brief and deadline agreed with the Client and; 

3.2    To carry out the Services in accordance with the Service Levels.

3.3    To manage and carry out the Services in an expert and diligent manner, and to provide their Services to the best of their technical and creative skill, and to be responsible for how the Services are provided; 

3.4    To the best of their ability, promptly and faithfully to meet the Deliverables and deadlines agreed with the Client;


3.5    To use such suitably qualified and experienced personnel as deemed appropriate;

3.6    HubGem Marketing Ltd has the right to supply a substitute of equivalent knowledge and expertise, and acknowledges that the Client has the right to refuse the replacement if, in the reasonable view of the Client, the replacement is not sufficiently qualified to undertake the work. Where substitution occurs, the Client will remain responsible for its obligations under the agreement and will be responsible for the payment of the replacement, so that there will be no further payments outside of the agreed terms to pay for any handover period between the original consultant and the replacement.

3.7    To keep the Client informed of progress on the Services in which they are engaged.

4.    Client involvement in Services

4.1 The Client agrees to give HubGem Marketing Ltd employees Super Admin access to their HubSpot portal as required for the duration of Services. This access will be used to enable HubGem Marketing Ltd to deliver Services as outlined in the Quote. The Client will provide HubGem Marketing Ltd employees with access to other systems, data and platforms reasonably required to provide the Services.

For Clients using iSAMS who require us to extract existing data stored in iSAMS via the API as part of the Services outlined in this agreement, there is a requirement for the Client to provide the iSAMS REST API key with HubGem via a 'One Time Secret' link. This authorises HubGem to use the key in order to extract parent/contact and applicant/child records from iSAMS for the purpose of importing this data into HubSpot. The software we use to assist us with the data import process is provided by Cursor, the web development company who we partnered with to develop the Admissions Sync. Cursor acts as our authorised data sub processor and will only process your data according to our written instructions. A separate data processing agreement will be provided between Cursor and Clients who are using the iSAMS admissions sync.

4.2 The Client shall adhere to the pre-agreed schedule for Services as outlined in the Quote and shall notify HubGem Marketing Ltd of any requests for changes to priorities or schedules in writing. HubGem Marketing Ltd will try to offer flexibility with any such requests but changes to pre-agreed schedules are not guaranteed. HubGem Marketing Ltd cannot be held liable for delays or disruption in the delivery or quality of the Service should they not be notified with adequate time of changes to schedules or priorities.

4.3 The Client shall be responsible for identifying and confirming in writing the relevant people that will be attending meetings or who should complete any tasks set as part of the Services. 

4.4 The Service and Deliverables are outlined in the quote, should any additional Services be required outside of the scope of this agreement then these will be quoted for, agreed and billed for separately.

4.5 Both HubGem Marketing Ltd and the client agree that punctuality and effective communication are essential and will respond to correspondence within 2 business days unless otherwise agreed.

4.6 HubGem Marketing Ltd will outline the communication channels that should be used by the client during the delivery of Services (including but not limited to: web forms, Trello, HubSpot, Zoom, Arrows, email and Slack). All communication should be via the agreed channels unless otherwise agreed in writing by both parties.

4.7 Services provided by HubGem Marketing Ltd often require input from the client which will be outlined verbally and in writing, and communicated clearly to the client. The client agrees to complete any follow-up work promptly and within the agreed schedule.

4.8 The Client shall not share the call recordings, training materials and documents provided by HubGem Marketing as part of the Service to any third party without prior written agreement.

4.9 Any complaints should first be raised by the Client to HubGem Marketing Ltd in writing (email is acceptable) within 21 days from the date of receipt of Service. HubGem Marketing Ltd will endeavour to offer a solution within 48 hours. After which it will be assumed by HubGem Marketing Ltd that the client is happy with all Services received.


5.    Invoices and Payment

Fees for the Services will be as outlined and agreed in the Quote.

5.1 The Client shall ensure that the Quote and this Agreement are signed, and invoice is paid prior to commencement of Services.    

5.2  Where necessary, VAT will be added at the appropriate rate.

5.3    Unless specifically agreed otherwise, invoices will be issued upfront and prior to the project kick-off date by HubGem Marketing Ltd and payment should be made within 15 days.

5.4    HubGem Marketing Ltd shall be entitled to be reimbursed by the Client for all out of pocket expenses wholly, exclusively and properly incurred in the performance of the Services subject to HubGem Marketing Ltd providing the Client with vouchers, receipts or other evidence of actual payment of such expenses and subject to the arrangement being specifically agreed in advance by the Client to HubGem Marketing Ltd.

5.5    Interest on overdue invoices shall accrue from the date when payment becomes due, calculated on a daily basis until the date of payment at the rate of 8% per annum above the Bank of England base rate from time to time in force.  Such interest shall accrue after as well as before any judgment.

5.6    The Client shall pay all accounts in full and not exercise any rights of set-off or counterclaim against invoices submitted by HubGem Marketing Ltd.

6.     Confidentiality

6.1    HubGem Marketing Ltd hereby agrees that during the course of their engagement under this Agreement they are likely to obtain knowledge of trade secrets and also other confidential information with regard to the Client and financial affairs of the Client and those of the Client’s clients, customers and suppliers details of which are not in the public domain (‘Confidential Information’), and accordingly HubGem Marketing Ltd hereby undertakes to and covenants with the Client that:

6.1.1    They shall not use the Confidential Information other than during the continuance of this Agreement and in connection with the provision of the Services; and

6.1.2    They shall not at any time after the date of this Agreement (save as required by law) disclose or divulge to any person other than to officers or employees of the Client whose province it is to know the same any Confidential Information and he or she shall use his or her best endeavours to prevent the publication or disclosure of any Confidential Information by any other person.

6.2    The restrictions set out in this clause shall cease to apply to information or knowledge which comes into the public domain otherwise than by reason of the default of HubGem Marketing Ltd.

7.    Termination of Agreement

7.1    This Agreement will terminate on fulfilment of the Services.

7.2    In addition, either party shall have the right to terminate this Agreement at any time by summary notice without any payment in lieu in the event of: 

7.2.1    The other party being in material or persistent breach of any of the terms of this Agreement; or
    
7.2.2    The other party persistently and wilfully neglecting or becoming incapable for any reason of efficiently performing the Services or failing to remedy any default in providing the Services; or 

7.2.3    The other party dying or becoming by reason of incapacity incapable of managing their affairs; or

7.2.4    The other party having a bankruptcy order made against them or making any arrangement with his or her creditors or having an interim order made against him or her; or

7.2.5    The other party taking any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; or

7.2.6    There being a change of control of the other party; or

7.2.7    A party’s financial position deteriorates to such an extent that in the other party's reasonable opinion that party’s capability to adequately fulfil its obligations under this Agreement have been placed in jeopardy; or

7.2.8    A party doing any action manifestly prejudicial to the interests of the other party or which in the opinion of the other party may bring them into disrepute; 

and that party shall have no claim against the terminating party in respect of the termination of his or her appointment for any of the reasons specified pursuant to the above clauses.
     
8.    Consequences of Termination

8.1    Upon the expiration or termination of the engagement under this Agreement for whatsoever cause, HubGem Marketing Ltd shall forthwith deliver up to the Client or its authorised representative all its property, including all equipment, materials, tools, keys, swipe cards, computer hardware and/or software, books, documents, account records and any other papers which may be in their possession, custody or control and which are the property of the Client or which otherwise relate in any way to the Client or affairs of the Client and no copies of the same or any part thereof shall be retained by them. 

8.2    The Client shall immediately pay to HubGem Marketing Ltd all outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, HubGem Marketing Ltd may submit an invoice, which shall be payable immediately on receipt;

8.3    The Client shall, within 7 working days, return all of HubGem Marketing Ltd’s equipment. 

8.4    Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry. 

8.5    The termination of this agreement howsoever occurring shall not affect the rights and liabilities of the parties already accrued at such time nor affect the continuance in force of such of its provisions as are expressed as or capable of having effect after such termination.

9.     Insurance

HubGem Marketing Ltd further warrants to the Client that they will:

9.1    Take out and maintain throughout the term of this Agreement, adequate professional indemnity insurance to protect themselves against any liabilities arising out of this Agreement and shall produce, at the request of the Client, a copy of the insurance policy or policies and relevant renewal receipts for inspection by the Client; 

9.2    Take out and maintain throughout the term of this Agreement, adequate public liability insurance coverage to protect themselves against any liabilities arising out of this Agreement in respect of all and any contractors/employees they utilise to carry out the Services and shall produce, at the request of the Client, a copy of the insurance policy or policies and relevant renewal receipts for inspection by the Client.

10.    Data Protection and Data Processing

10.1    Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation. In this Clause Applicable Laws means (for so long as and to the extent that they apply to HubGem Marketing Ltd) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.

10.2    The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and HubGem Marketing Ltd is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).

10.3    Without prejudice to the generality of Sub- clause 10.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to HubGem Marketing Ltd for the duration and purposes of the Contract.

10.4    Without prejudice to the generality of Sub-clause 10.1, HubGem Marketing Ltd shall, in relation to any Personal Data processed in connection with the performance by HubGem Marketing Ltd of its obligations under the Contract:

10.4.1    Process that Personal Data only on the written instructions of the Client unless HubGem Marketing Ltd is required by Applicable Laws to otherwise process that Personal Data. Where HubGem Marketing Ltd is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, HubGem Marketing Ltd shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit HubGem Marketing Ltd from so notifying the Client;

10.4.2    Ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and Services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

10.4.3    Ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

10.4.4    Not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:

i.    The Client or HubGem Marketing Ltd has provided appropriate safeguards in relation to the transfer;

ii.    The Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;

iii.     HubGem Marketing Ltd complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

iv.    HubGem Marketing Ltd complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;

10.4.5    Assist the Client, at the Client's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

10.4.6    Notify the Client without undue delay on becoming aware of a Personal Data breach;

10.4.7    At the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the Personal Data; and

10.4.8    Maintain complete and accurate records and information to demonstrate its compliance with this Clause 10.

10.5    The Client does not consent to HubGem Marketing Ltd appointing any third-party processor of Personal Data under the Contract.

10.6    Either party may, at any time on not less than 30 days' notice, revise this Clause 10 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).

For Clients using iSAMS who require us to extract existing data stored in iSAMS via the API as part of the Services outlined in this agreement, there is a requirement for the Client to provide the iSAMS REST API key with HubGem via a 'One Time Secret' link. This authorises HubGem to use the key in order to extract parent/contact and applicant/child records from iSAMS for the purpose of importing this data into HubSpot. The software we use to assist us with the data import process is provided by Cursor, the web development company who we partnered with to develop the Admissions Sync. Cursor acts as our authorised data sub processor and will only process your data according to our written instructions. A separate data processing agreement will be provided between Cursor and Clients who are using the iSAMS admissions sync. 

11.   Intellectual property

11.1    All Intellectual Property Rights including but not limited to call recordings, training plans, and resources, arising out of or in connection with the Services (other than intellectual property rights in any materials created within the Client’s HubSpot portal or other software belonging to the Client) shall be owned by HubGem Marketing Ltd.

11.2    The Client shall not share training resources, call recordings, training plans or any other resources provided as part of this Agreement with any third party.

11.3 HubGem Marketing Ltd may display a selection of the best visual imagery, website design, copy or social media content covered by this Agreement to promote the business in advertising, brochures, magazine articles, websites & social media. HubGem Marketing Ltd will only use images that they feel portray The Client in a positive manner.
It is the responsibility of The Client to notify and seek the permission of all parties included or represented in visual or written content.


12.  Limitation of Liability

12.1     Nothing in this Agreement shall limit or exclude HubGem Marketing Ltd’s liability for:  

12.1.1    death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

12.1.2     fraud or fraudulent misrepresentation; 

12.1.3     breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

12.1.4     defective products under the Consumer Protection Act 1987; or 

12.1.5     any matter in respect of which it would be unlawful for HubGem Marketing Ltd to exclude or restrict liability.

12.2     Subject to clause 12.1:

12.2.1     HubGem Marketing Ltd shall under no circumstances whatsoever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:

i.    loss of profits;

        ii.    loss of sales or business;

        iii.    loss of agreements or contracts;

        iv.    loss of anticipated savings;

v.    loss of use or corruption of software;

vi.    loss of damage to goodwill; and

vii.    any indirect or consequential loss, and  

12.3     HubGem Marketing Ltd’s total liability to the Client, in respect of all other losses arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Services.

12.4 HubGem Marketing Ltd is a HubSpot Solutions Partner working with HubSpot and other third-party providers. HubGem Marketing Ltd is a separate entity to HubSpot and other third-party providers, and the Client is expected to agree to Terms and Conditions as required directly by HubSpot and other third-party providers. This agreement is not an amendment to any HubSpot Order Form, Terms of Service or any other agreement between the Client and HubSpot or other third-party providers. HubGem Marketing Ltd shall be in no way liable for Services provided by HubSpot or other third-party providers or platforms.

12.5    This clause 12 shall survive termination of the Agreement.


13.    No Employment or Partnership

13.1    HubGem Marketing Ltd is an independent contractor and nothing in this Agreement shall render or be deemed to render HubGem Marketing Ltd an employee, worker or agent of the Client and HubGem Marketing Ltd shall not hold himself or herself out as such.  This Agreement does not create any mutuality of obligation between HubGem Marketing Ltd and the Client and neither party seeks to create or imply any mutuality of obligation between the parties in the course of the performance of this engagement or during any notice period.  The Client is not obliged to offer work to HubGem Marketing Ltd, nor is HubGem Marketing Ltd obliged to accept work where it is offered.

13.2    HubGem Marketing Ltd may choose to delegate performance of the Services to such suitably qualified and experienced personnel as he or she may from time to time deem appropriate. The Client has the right to refuse the replacement if, in the reasonable view of the Client, the replacement is not sufficiently qualified to undertake the work.  HubGem Marketing Ltd must provide details of the name of the delegate/substitute.  HubGem Marketing Ltd will be responsible for remunerating the delegate/substitute, such that there will be no further payments outside of the agreed terms to pay for any handover period between HubGem Marketing Ltd and the delegate/substitute. When a delegate/substitute is appointed, the provisions relating to sub-processor obligations under Clause 10 will apply.

13.3    This Agreement constitutes a contract for the provision of Services and not a contract of employment and accordingly HubGem Marketing Ltd shall be fully responsible for and shall indemnify the Client for and in respect of:

13.3.1    Any income tax, National Insurance and social security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with the performance of the Services, where the recovery is not prohibited by law. HubGem Marketing Ltd shall further indemnify the Client against all reasonable costs, expenses and any penalty, fine or interest incurred or payable by the Client in connection with or in consequence of any such liability, deduction, contribution, assessment other than where the latter arise out of the Client’ negligence or wilful default;

13.3.2    Any liability arising from any employment-related claim or any claim based on worker status (including reasonable costs and expenses) brought by HubGem Marketing Ltd or any substitute against the Client arising out of or in connection with the provision of the Services, except where such claim is as a result of any act or omission of the Client.

13.4    The Client may at its option satisfy such indemnity (in whole or in part) by way of deduction from any payments due to HubGem Marketing Ltd.

13.5    Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

14.    Notices/Communications

14.1    Any notice or other communication given to a party under or in connection with this agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail.

14.2    A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address stated in this Agreement or to such other address (being in Great Britain) as the addressee may from time to time have notified for the purpose of this Clause; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission. 

14.3    The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

15.    Entire Agreement

15.1    This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

15.2    Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

16.    Force Majeure

16.1    If either party to this Agreement is prevented or delayed in the performance of any of its respective obligations under this Agreement by “force majeure”, then such party shall be excused the performance for so long as such cause of prevention or delay shall continue;

16.2    For the purpose of this Agreement ‘force majeure’ shall be deemed to be any cause affecting the performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of such party and inter alia including, but not limited to the following:

16.2.1    Strikes, lockouts or other industrial action;

16.2.2    Terrorism, civil commotion, riot, invasion, war threat or preparation for war;

16.2.3    Fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, bad weather or other natural physical disaster;

16.2.4    Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; and

16.2.5    Political interference with the normal operations.

17.    Assignment and Other Dealings

17.1    The Client may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under this Agreement and may subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent.
    
17.2    HubGem Marketing Ltd shall not, without the prior written consent of the Client, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement.

18.    Survival of Causes of Action

The termination of this Agreement howsoever occurring shall not affect the rights and liabilities of the parties already accrued at such time nor affect the continuance in force of such of its provisions as are expressed as or capable of having effect after such termination.

19.    Severability

If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of this Agreement shall continue in full force and effect as if this Agreement had been executed with the illegal or unenforceable provision eliminated.

20.    Waiver

A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default.  No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

21.    Variation

21.1    No variation of this Agreement shall be effective unless it is in writing and signed by both parties (or their authorised representatives). 

21.2    The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

22.    Law and Jurisdiction

22.1    This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

22.2    Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).